§ 1238. The plain import of the clause is, that congress
shall have all the incidental and instrumental powers, necessary
and proper to carry into execution all the express
powers. It neither enlarges any power specifically granted;
nor is it a grant of any new power to congress. But it is
merely a declaration for the removal of all uncertainty,
that the means of carrying into execution those, otherwise
granted, are included in the grant. Whenever, therefore,
a question arises concerning the constitutionality of a particular
power, the first question is, whether the power be
expressed in the constitution. If it be, the question is decided.
If it be not expressed, the next inquiry must be,
whether it is properly an incident to an express power,
and necessary to its execution. If it be, then it may be exercised
by congress. If not, congress cannot exercise it.

§ 1239. But still a ground of controversy remains open,
as to the true interpretation of the terms of the clause; and
it has been contested with no small share of earnestness
and vigour. What, then, is the true constitutional sense of
the words "necessary and proper" in this clause? It has
been insisted by the advocates of a rigid interpretation,
that the word "necessary" is here used in its close and most
intense meaning; so that it is equivalent to absolutely and
indispensably necessary. It has been said, that the constitution
allows only the means, which are necessary; not those,
which are merely convenient for effecting the enumerated
powers. If such a latitude of construction be given to this
phrase, as to give any non-enumerated power, it will go
far to give every one; for there is no one, which ingenuity
might not torture into a convenience in some way or other
to some one of so long a list of enumerated powers. It
would swallow up all the delegated powers, and reduce the
whole to one phrase. Therefore it is, that the constitution
has restrained them to the necessary means; that is to say,
to those means, without which the grant of the power would be
nugatory. A little difference in the degree of convenience
cannot constitute the necessity, which the constitution refers
to.

§ 1240. The effect of this mode of interpretation is to
exclude all choice of means; or, at most, to leave to congress
in each case those only, which are most direct and
simple. If, indeed, such implied powers, and such only, as
can be shown to be indispensably necessary, are within the
purview of the clause, there will be no end to difficulties,
and the express powers must practically become a mere
nullity. It will be found, that the operations of the government,
upon any of its powers, will rarely admit of a rigid
demonstration of the necessity (in this strict sense) of the
particular means. In most cases, various systems or means
may be resorted to, to attain the same end; and yet, with
respect to each, it may be argued, that it is not constitutional,
because it is not indispensable; and the end may be
obtained by other means. The consequence of such reasoning
would be, that, as no means could be shown to be
constitutional, none could be adopted. For instance, congress
possess the power to make war, and to raise armies,
and incidentally to erect fortifications, and purchase cannon
and ammunition, and other munitions of war. But
war may be carried on without fortifications, cannon, and
ammunition. No particular kind of arms can be shown to
be absolutely necessary; because various sorts of arms of
different convenience, power, and utility are, or may be
resorted to by different nations. What then becomes of the
power? Congress has power to borrow money, and to provide
for the payment of the public debt; yet no particular
method is indispensable to these ends. They may be attained
by various means. Congress has power to provide a
navy; but no particular size, or form, or equipment of
ships is indispensable. The means of providing a naval establishment
are very various; and the applications of them
admit of infinite shades of opinion, as to their convenience,
utility, and necessity. What then is to be done? Are
the powers to remain dormant? Would it not be absurd to
say, that congress did not possess the choice of means under
such circumstances, and ought not to be empowered
to select, and use any means, which are in fact conducive
to the exercise of the powers granted by the constitution?
Take another example; congress has, doubtless, the authority,
under the power to regulate commerce, to erect
light-houses, beacons, buoys, and public piers, and authorize
the employment of pilots. But it cannot be affirmed,
that the exercise of these powers is in a strict sense necessary;
or that the power to regulate commerce would be
nugatory without establishments of this nature. In truth,
no particular regulation of commerce can ever be shown
to be exclusively and indispensably necessary; and thus we
should be driven to admit, that all regulations are within
the scope of the power, or that none are. If there be any
general principle, which is inherent in the very definition
of government, and essential to every step of the progress
to be made by that of the United States, it is, that every
power, vested in a government, is in its nature sovereign,
and includes, by force of the term, a right to employ all
the means requisite, and fairly applicable to the attainment
of the end of such power; unless they are excepted in the
constitution, or are immoral, or are contrary to the essential
objects of political society.

§ 1241. There is another difficulty in the strict construction
above alluded to, that it makes the constitutional authority
depend upon casual and temporary circumstances,
which may produce a necessity to-day, and change it tomorrow.
This alone shows the fallacy of the reasoning.
The expediency of exercising a particular power at a particular
time must, indeed, depend on circumstances; but
the constitutional right of exercising it must be uniform
and invariable; the same today as to-morrow.

§ 1242. Neither can the degree, in which a measure is
necessary, ever be a test of the legal right to adopt it. That
must be a matter of opinion, (upon which different men,
and different bodies may form opposite judgments,) and
can only be a test of expediency. The relation between the
measure and the end, between the nature of the means
employed towards the execution of a power, and the object
of that power, must be the criterion of constitutionality;
and not the greater or less of necessity or expediency.
If the legislature possesses a right of choice as to the
means, who can limit that choice? Who is appointed an
umpire, or arbiter in cases, where a discretion is confided
to a government? The very idea of such a controlling authority
in the exercise of its powers is a virtual denial of
the supremacy of the government in regard to its powers.
It repeals the supremacy of the national government, proclaimed
in the constitution.

§ 1243. It is equally certain, that neither the grammatical,
nor the popular sense of the word, "necessary," requires
any such construction. According to both, "necessary"
often means no more than needful, requisite,
incidental, useful, or conducive to. It is a common mode of
expression to say, that it is necessary for a government, or
a person to do this or that thing, when nothing more is
intended or understood, than that the interest of the government
or person requires, or will be promoted by the
doing of this or that thing. Every one's mind will at once
suggest to him many illustrations of the use of the word in
this sense. To employ the means, necessary to an end, is
generally understood, as employing any means calculated
to produce the end, and not as being confined to those
single means, without which the end would be entirely unattainable.

§ 1244. Such is the character of human language, that
no word conveys to the mind in all situations one single
definite idea; and nothing is more common, than to use
words in a figurative sense. Almost all compositions contain
words, which, taken in their rigorous sense, would
convey a meaning, different from that, which is obviously
intended. It is essential to just interpretation, that many
words, which import something excessive, should be understood
in a more mitigated sense; in a sense, which common
usage justifies. The word "necessary" is of this description.
It has not a fixed character peculiar to itself. It
admits of all degrees of comparison; and is often connected
with other words, which increase or diminish the
impression, which the mind receives of the urgency it imports.
A thing may be necessary, very necessary, absolutely
or indispensably necessary. It may be little necessary, less
necessary, or least necessary. To no mind would the same
idea be conveyed by any two of these several phrases. The
tenth section of the first article of the constitution furnishes
a strong illustration of this very use of the word. It
contains a prohibition upon any state to "lay any imposts
or duties, &c. except what may be absolutely necessary for
executing its inspection laws." No one can compare this
clause with the other, on which we are commenting, without
being struck with the conviction, that the word "absolutely,"
here prefixed to "necessary," was intended to distinguish
it from the sense, in which, standing alone, it is
used in the other.

§ 1245. That the restrictive interpretation must be abandoned,
in regard to certain powers of the government,
cannot be reasonably doubted. It is universally conceded,
that the power of punishment appertains to sovereignty,
and may be exercised, whenever the sovereign has a right
to act, as incidental to his constitutional powers. It is a
means for carrying into execution all sovereign powers,
and may be used, although not indispensably necessary. If,
then, the restrictive interpretation must be abandoned, in
order to justify the constitutional exercise of the power to
punish; whence is the rule derived, which would reinstate
it, when the government would carry its powers into operation,
by means not vindictive in their nature? If the
word, "necessary" means needful, requisite, essential, conducive
to, to let in the power of punishment, why is it not
equally comprehensive, when applied to other means used
to facilitate the execution of the powers of the government?

§ 1246. The restrictive interpretation is also contrary to
a sound maxim of construction, generally admitted,
namely, that the powers contained in a constitution of government,
especially those, which concern the general administration
of the affairs of the country, such as its finances,
its trade, and its defence, ought to be liberally
expounded in advancement of the public good. This rule
does not depend on the particular form of a government,
or on the particular demarcations of the boundaries of its
powers; but on the nature and objects of government itself.
The means, by which national exigencies are provided
for, national inconveniences obviated, and national prosperity
promoted, are of such infinite variety, extent, and
complexity, that there must of necessity be great latitude
of discretion in the selection, and application of those
means. Hence, consequently, the necessity and propriety
of exercising the authorities, entrusted to a government,
on principles of liberal construction.

§ 1247. It is no valid objection to this doctrine to say,
that it is calculated to extend the powers of the government
throughout the entire sphere of state legislation. The
same thing may be said, and has been said, in regard to
every exercise of power by implication and construction.
There is always some chance of error, or abuse of every
power; but this furnishes no ground of objection against
the power; and certainly no reason for an adherence to
the most rigid construction of its terms, which would at
once arrest the whole movements of the government. The
remedy for any abuse, or misconstruction of the power, is
the same, as in similar abuses and misconstructions of the
state governments. It is by an appeal to the other departments
of the government; and finally to the people, in the
exercise of their elective franchises.

§ 1248. There are yet other grounds against the restrictive
interpretation derived from the language, and the
character of the provision. The language is, that congress
shall have power "to make all laws, which shall be necessary
and proper." If the word "necessary" were used in the strict
and rigorous sense contended for, it would be an extraordinary
departure from the usual course of the human
mind, as exhibited in solemn instruments, to add another
word "proper;" the only possible effect of which is to qualify
that strict and rigorous meaning, and to present clearly
the idea of a choice of means in the course of legislation.
If no means can be resorted to, but such as are indispensably
necessary, there can be neither sense, nor utility in
adding the other word; for the necessity shuts out from
view all consideration of the propriety of the means, as
contradistinguished from the former. But if the intention
was to use the word "necessary" in its more liberal sense,
then there is a peculiar fitness in the other word. It has a
sense at once admonitory, and directory. It requires, that
the means should be, bonâ fide, appropriate to the end.

§ 1249. The character of the clause equally forbids any
presumption of an intention to use the restrictive interpretation.
In the first place, the clause is placed among the
powers of congress, and not among the limitations on
those powers. In the next place, its terms purport to enlarge,
and not to diminish, the powers vested in the government.
It purports, on its face, to be an additional
power, not a restriction on those already granted. If it
does not, in fact, (as seems the true construction,) give any
new powers, it affirms the right to use all necessary and
proper means to carry into execution the other powers;
and thus makes an express power, what would otherwise be
merely an implied power. In either aspect, it is impossible
to construe it to be a restriction. If it have any effect, it is
to remove the implication of any restriction. If a restriction
had been intended, it is impossible, that the framers of the
constitution should have concealed it under phraseology,
which purports to enlarge, or at least give the most ample
scope to the other powers. There was every motive on
their part to give point and clearness to every restriction
of national power; for they well knew, that the national
government would be more endangered in its adoption by
its supposed strength, than by its weakness. It is inconceivable,
that they should have disguised a restriction upon its
powers under the form of a grant of power. They would
have sought other terms, and have imposed the restraint
by negatives. And what is equally strong, no one, in or out
of the state conventions, at the time when the constitution
was put upon its deliverance before the people, ever
dreamed of, or suggested, that it contained a restriction of
power. The whole argument on each side, of attack and of
defence, gave it the positive form of an express power,
and not of an express restriction.

§ 1250. Upon the whole, the result of the most careful
examination of this clause is, that, if it does not enlarge, it
cannot be construed to restrain the powers of congress, or
to impair the right of the legislature to exercise its best
judgment, in the selection of measures to carry into execution
the constitutional powers of the national government.
The motive for its insertion doubtless was, the desire
to remove all possible doubt respecting the right to
legislate on that vast mass of incidental powers, which
must be involved in the constitution, if that instrument be
not a splendid pageant, or a delusive phantom of sovereignty.
Let the end be legitimate; let it be within the scope
of the constitution; and all means, which are appropriate,
which are plainly adapted to the end, and which are not
prohibited, but are consistent with the letter and spirit of
the instrument, are constitutional.

§ 1251. It may be well, in this connexion, to mention
another sort of implied power, which has been called with
great propriety a resulting power, arising from the aggregate
powers of the national government. It will not be
doubted, for instance, that, if the United States should
make a conquest of any of the territories of its neighbours,
the national government would possess sovereign jurisdiction
over the conquered territory. This would, perhaps,
rather be a result from the whole mass of the powers of
the national government, and from the nature of political
society, than a consequence or incident of the powers specially
enumerated. It may, however, be deemed, if an incident
to any, an incident to the power to make war. Other
instances of resulting powers will easily suggest themselves.
The United States are nowhere declared in the constitution
to be a sovereignty entitled to sue, though jurisdiction
is given to the national courts over controversies, to which
the United States shall be a party. It is a natural incident,
resulting from the sovereignty and character of the national
government. So the United States, in their political
capacity, have a right to enter into a contract, (although it
is not expressly provided for by the constitution,) for it is
an incident to their general right of sovereignty, so far as
it is appropriate to any of the ends of the government, and
within the constitutional range of its powers. So congress
possess power to punish offences committed on board of
the public ships of war of the government by persons not
in the military or naval service of the United States,
whether they are in port, or at sea; for the jurisdiction on
board of public ships is every where deemed exclusively to
belong to the sovereign.

§ 1252. And not only may implied powers, but implied
exemptions from state authority, exist, although not expressly
provided for by law. The collectors of the revenue,
the carriers of the mail, the mint establishment, and all
those institutions, which are public in their nature, are examples
in point. It has never been doubted, that all, who
are employed in them, are protected, while in the line of
their duty, from state control; and yet this protection is not
expressed in any act of congress. It is incidental to, and is
implied in, the several acts, by which those institutions are
created; and is preserved to them by the judicial department,
as a part of its functions. A contractor for supplying
a military post with provisions cannot be restrained from
making purchases within a state, or from transporting
provisions to the place, at which troops are stationed. He
could not be taxed, or fined, or lawfully obstructed, in so
doing. These incidents necessarily flow from the supremacy
of the powers of the Union, within their legitimate
sphere of action.

§ 1253. It would be almost impracticable, if it were not
useless, to enumerate the various instances, in which congress,
in the progress of the government, have made use
of incidental and implied means to execute its powers.
They are almost infinitely varied in their ramifications and
details. It is proposed, however, to take notice of the principal
measures, which have been contested, as not within
the scope of the powers of congress, and which may be
distinctly traced in the operations of the government, and
in leading party divisions.

§ 1254. One of the earliest and most important measures,
which gave rise to a question of constitutional
power, was the act chartering the bank of the United
States in 1791. That question has often since been discussed;
and though the measure has been repeatedly sanctioned
by congress, by the executive, and by the judiciary,
and has obtained the like favour in a great majority of the
states, yet it is, up to this very hour, still debated upon
constitutional grounds, as if it were still new, and untried.
It is impossible, at this time, to treat it, as an open question,
unless the constitution is for ever to remain an unsettled
text, possessing no permanent attributes, and incapable
of having any ascertained sense; varying with every
change of doctrine, and of party; and delivered over to
interminable doubts. If the constitution is to be only, what
the administration of the day may wish it to be; and is to
assume any, and all shapes, which may suit the opinions
and theories of public men, as they successively direct the
public councils, it will be difficult, indeed, to ascertain,
what its real value is. It cannot possess either certainty, or
uniformity, or safety. It will be one thing to-day, and another
thing to-morrow, and again another thing on each
succeeding day. The past will furnish no guide, and the
future no security. It will be the reverse of a law; and entail
upon the country the curse of that miserable servitude,
so much abhorred and denounced, where all is vague and
uncertain in the fundamentals of government.

§ 1255. The reasoning, upon which the constitutionality
of a national bank is denied, has been already in some degree
stated in the preceding remarks. It turns upon the
strict interpretation of the clause, giving the auxiliary powers
necessary, and proper to execute the other enumerated
powers. It is to the following effect: The power to
incorporate a bank is not among those enumerated in the
constitution. It is known, that the very power, thus proposed,
as a means, was rejected, as an end, by the convention,
which formed the constitution. A proposition was
made in that body, to authorize congress to open canals,
and an amendatory one to empower them to create corporations.
But the whole was rejected; and one of the reasons
of the rejection urged in debate was, that they then
would have a power to create a bank, which would render
the great cities, where there were prejudices and jealousies
on that subject, adverse to the adoption of the constitution.
In the next place, all the enumerated powers can be carried
into execution without a bank. A bank, therefore, is
not necessary, and consequently not authorized by this
clause of the constitution. It is urged, that a bank will give
great facility, or convenience to the collection of taxes. If
this were true, yet the constitution allows only the means,
which are necessary, and not merely those, which are convenient
for effecting the enumerated powers. If such a latitude
of construction were allowed, as to consider convenience,
as justifying the use of such means, it would
swallow up all the enumerated powers. Therefore, the
constitution restrains congress to those means, without
which the power would be nugatory.

§ 1256. Nor can its convenience be satisfactorily established.
Bank-bills may be a more convenient vehicle, than
treasury orders, for the purposes of that department. But
a little difference in the degree of convenience cannot constitute
the necessity contemplated by the constitution. Besides;
the local and state banks now in existence are competent,
and would be willing to undertake all the agency
required for those very purposes by the government. And
if they are able and willing, this establishes clearly, that
there can be no necessity for establishing a national bank.
If there would ever be a superior conveniency in a national
bank, it does not follow, that there exists a power to
establish it, or that the business of the country cannot go
on very well without it. Can it be thought, that the constitution
intended, that for a shade or two of convenience,
more or less, congress should be authorized to break down
the most ancient and fundamental laws of the states, such
as those against mortmain, the laws of alienage, the rules
of descent, the acts of distribution, the laws of escheat and
forfeiture, and the laws of monopoly? Nothing but a necessity,
invincible by any other means, can justify such a
prostration of laws, which constitute the pillars of our
whole system of jurisprudence. If congress have the power
to create one corporation, they may create all sorts; for the
power is no where limited; and may even establish monopolies.
Indeed this very charter is a monopoly.

§ 1257. The reasoning, by which the constitutionality of
the national bank has been sustained, is contained in the
following summary. The powers confided to the national
government are unquestionably, so far as they exist, sovereign
and supreme. It is not, and cannot be disputed, that
the power of creating a corporation is one belonging to
sovereignty. But so are all other legislative powers; for the
original power of giving the law on any subject whatever
is a sovereign power. If the national government cannot
create a corporation, because it is an exercise of sovereign
power, neither can it, for the same reason, exercise any
other legislative power. This consideration alone ought to
put an end to the abstract inquiry, whether the national
government has power to erect a corporation, that is, to
give a legal or artificial capacity to one or more persons,
distinct from the natural capacity. For, if it be an incident
to sovereignty, and it is not prohibited, it must belong to
the national government in relation to the objects entrusted
to it. The true difference is this; where the authority
of a government is general, it can create corporations
in all cases; where it is confined to certain branches of legislation,
it can create corporations only as to those cases. It
cannot be denied, that implied powers may be delegated,
as well as express. It follows, that a power to erect corporations
may as well be implied, as any other thing, if it be
an instrument or means of carrying into execution any
specified power. The only question in any case must be,
whether it be such an instrument or means, and have a
natural relation to any of the acknowledged objects of government.
Thus, congress may not erect a corporation for
superintending the police of the city of Philadelphia, because
they have no authority to regulate the police of that
city. But if they possessed the authority to regulate the police
of such city, they might, unquestionably, create a corporation
for that purpose; because it is incident to the sovereign
legislative power to regulate a thing, to employ all
the means, which relate to its regulation, to the best and
greatest advantage.

§ 1258. A strange fallacy has crept into the reasoning on
this subject. It has been supposed, that a corporation is
some great, independent thing; and that the power to
erect it is a great, substantive, independent power;
whereas, in truth, a corporation is but a legal capacity,
quality, or means to an end; and the power to erect it is,
or may be, an implied and incidental power. A corporation
is never the end, for which other powers are exercised; but
a means, by which other objects are accomplished. No contributions
are made to charity for the sake of an incorporation;
but a corporation is created to administer the charity.
No seminary of learning is instituted in order to be
incorporated; but the corporate character is conferred to
subserve the purposes of education. No city was ever built
with the sole object of being incorporated; but it is incorporated
as affording the best means of being well governed.
So a mercantile company is formed with a certain
capital for carrying on a particular branch of business.
Here, the business to be prosecuted is the end. The association,
in order to form the requisite capital, is the primary
means. If an incorporation is added to the association,
it only gives it a new quality, an artificial capacity, by
which it is enabled to prosecute the business with more
convenience and safety. In truth, the power of creating a
corporation is never used for its own sake; but for the purpose
of effecting something else. So that there is not a
shadow of reason to say, that it may not pass as an incident
to powers expressly given, as a mode of executing them.

§ 1259. It is true, that among the enumerated powers
we do not find that of establishing a bank, or creating a
corporation. But we do find there the great powers to lay
and collect taxes; to borrow money; to regulate commerce;
to declare and conduct war; and to raise and support armies
and navies. Now, if a bank be a fit means to execute
any or all of these powers, it is just as much implied, as
any other means. If it be "necessary and proper" for any
of them, how is it possible to deny the authority to create
it for such purposes? There is no more propriety in giving
this power in express terms, than in giving any other incidental
powers or means in express terms. If it had been
intended to grant this power generally, and to make it a
distinct and independent power, having no relation to, but
reaching beyond the other enumerated powers, there
would then have been a propriety in giving it in express
terms, for otherwise it would not exist. Thus, it was proposed
in the convention, to give a general power "to grant
charters of incorporation;"--to "grant charters of incorporation
in cases, where the public good may require
them, and the authority of a single state may be incompetent;"--and
"to grant letters of incorporation for canals,
&c." If either of these propositions had been adopted,
there would have been an obvious propriety in giving the
power in express terms; because, as to the two former, the
power was general and unlimited, and reaching far beyond
any of the other enumerated powers; and as to the
latter, it might be far more extensive than any incident to
the other enumerated powers. But the rejection of these
propositions does not prove, that congress in no case, as
an incident to the enumerated powers, should erect a corporation;
but only, that they should not have a substantive,
independent power to erect corporations beyond those
powers.

§ 1260. Indeed, it is most manifest, that it never could
have been contemplated by the convention, that congress
should, in no case, possess the power to erect a corporation.
What otherwise would become of the territorial governments,
all of which are corporations created by congress?
There is no where an express power given to
congress to erect them. But under the confederation, congress
did provide for their erection, as a resulting and implied
right of sovereignty, by the celebrated ordinance of
1787; and congress, under the constitution, have ever
since, without question, and with the universal approbation
of the nation, from time to time created territorial
governments. Yet congress derive this power only by implication,
or as necessary and proper, to carry into effect
the express power to regulate the territories of the United
States. In the convention, two propositions were made and
referred to a committee at the same time with the propositions
already stated respecting granting of charters, "to
dispose of the unappropriated lands of the United States,"
and "to institute temporary governments for new states
arising therein." Both these propositions shared the same
fate, as those respecting charters of incorporation. But
what would be thought of the argument, built upon this
foundation, that congress did not possess the power to
erect territorial governments, because these propositions
were silently abandoned, or annulled in the convention?

§ 1261. This is not the only case, in which congress may
erect corporations. Under the power to accept a cession of
territory for the seat of government, and to exercise exclusive
legislation therein; no one can doubt, that congress
may erect corporations therein, not only public, but private
corporations. They have constantly exercised the
power; and it has never yet been breathed, that it was unconstitutional.
Yet it can be exercised only as an incident
to the power of general legislation. And if so, why may it
not be exercised, as an incident to any specific power of
legislation, if it be a means to attain the objects of such
power?

§ 1262. That a national bank is an appropriate means to
carry into effect some of the enumerated powers of the
government, and that this can be best done by erecting it
into a corporation, may be established by the most satisfactory
reasoning. It has a relation, more or less direct, to the
power of collecting taxes, to that of borrowing money, to
that of regulating trade between the states, and to those of
raising and maintaining fleets and armies. And it may be
added, that it has a most important bearing upon the regulation
of currency between the states. It is an instrument,
which has been usually applied by governments in the administration
of their fiscal and financial operations. And in
the present times it can hardly require argument to prove,
that it is a convenient, a useful, and an essential instrument
in the fiscal operations of the government of the
United States. This is so generally admitted by sound and
intelligent statesmen, that it would be a waste of time to
endeavour to establish the truth by an elaborate survey of
the mode, in which it touches the administration of all the
various branches of the powers of the government.

§ 1263. In regard to the suggestion, that a proposition
was made, and rejected in the convention to confer this
very power, what was the precise nature or extent of this
proposition, or what were the reasons for refusing it, cannot
now be ascertained by any authentic document, or
even by any accurate recollection of the members. As far
as any document exists, it specifies only canals. If this
proves any thing, it proves no more, than that it was
thought inexpedient to give a power to incorporate for the
purpose of opening canals generally. But very different
accounts are given of the import of the proposition, and
of the motives for rejecting it. Some affirm, that it was
confined to the opening of canals and obstructions of rivers;
others, that it embraced banks; and others, that it extended
to the power of incorporations generally. Some,
again, allege, that it was disagreed to, because it was
thought improper to vest in congress a power of erecting
corporations; others, because they thought it unnecessary
to specify the power; and inexpedient to furnish an additional
topic of objection to the constitution. In this state of
the matter, no inference whatever can be drawn from it.
But, whatever may have been the private intentions of the
framers of the constitution, which can rarely be established
by the mere fact of their votes, it is certain, that the true
rule of interpretation is to ascertain the public and just
intention from the language of the instrument itself, according
to the common rules applied to all laws. The people,
who adopted the constitution, could know nothing of
the private intentions of the framers. They adopted it
upon its own clear import, upon its own naked text. Nothing
is more common, than for a law to effect more or less,
the intention of the persons, who framed it; and it must
be judged of by its words and sense, and not by any private
intentions of members of the legislature.

§ 1264. In regard to the faculties of the bank, if congress
could constitutionally create it, they might confer on it
such faculties and powers, as were fit to make it an appropriate
means for fiscal operations. They had a right to
adapt it in the best manner to its end. No one can pretend,
that its having the faculty of holding a capital; of lending
and dealing in money; of issuing bank notes; of receiving
deposits; and of appointing suitable officers to manage its
affairs; are not highly useful and expedient, and appropriate
to the purposes of a bank. They are just such, as are
usually granted to state banks; and just such, as give increased
facilities to all its operations. To say, that the bank
might have gone on without this or that faculty, is nothing.
Who, but congress, shall say, how few, or how many it
shall have, if all are still appropriate to it, as an instrument
of government, and may make it more convenient, and
more useful in its operations? No man can say, that a single
faculty in any national charter is useless, or irrelevant,
or strictly improper, that is conducive to its end, as a national
instrument. Deprive a bank of its trade and business,
and its vital principles are destroyed. Its form may
remain, but its substance is gone. All the powers given to
the bank are to give efficacy to its functions of trade and
business.

§ 1265. As to another suggestion, that the same objects
might have been accomplished through the state banks, it
is sufficient to say, that no trace can be found in the constitution
of any intention to create a dependence on the
states, or state institutions, for the execution of its great
powers. Its own means are adequate to its end; and on
those means it was expected to rely for their accomplishment.
It would be utterly absurd to make the powers of
the constitution wholly dependent on state institutions.
But if state banks might be employed, as congress have a
choice of means, they had a right to choose a national
bank, in preference to state banks, for the financial operations
of the government. Proof, that they might use one
means, is no proof, that they cannot constitutionally use
another means.

§ 1266. After all, the subject has been settled repeatedly
by every department of the government, legislative, executive,
and judicial. The states have acquiesced; and a majority
have constantly sustained the power. If it is not now
settled, it never can be. If it is settled, it would be too much
to expect a re-argument, whenever any person may choose
to question it.

§ 1267. Another question, which has for a long time agitated
the public councils of the nation, is, as to the authority
of congress to make roads, canals, and other internal
improvements.

§ 1268. So far, as regards the right to appropriate
money to internal improvements generally, the subject has
already passed under review in considering the power to
lay and collect taxes. The doctrine there contended for,
which has been in a great measure borne out by the actual
practice of the government, is, that congress may appropriate
money, not only to clear obstructions to navigable
rivers; to improve harbours; to build breakwaters; to assist
navigation; to erect forts, light-houses, and piers; and for
other purposes allied to some of the enumerated powers;
but may also appropriate it in aid of canals, roads, and
other institutions of a similar nature, existing under state
authority. The only limitations upon the power are those
prescribed by the terms of the constitution, that the objects
shall be for the common defence, or the general welfare
of the Union. The true test is, whether the object be of a
local character, and local use; or, whether it be of general
benefit to the states. If it be purely local, congress cannot
constitutionally appropriate money for the object. But, if
the benefit be general, it matters not, whether in point of
locality it be in one state, or several; whether it be of large,
or of small extent; its nature and character determine the
right, and congress may appropriate money in aid of it;
for it is then in a just sense for the general welfare.

§ 1269. But it has been contended, that the constitution
is not confined to mere appropriations of money; but authorizes
congress directly to undertake and carry on a system
of internal improvements for the general welfare;
wherever such improvements fall within the scope of any
of the enumerated powers. Congress may not, indeed, engage
in such undertakings merely because they are internal
improvements for the general welfare, unless they fall
within the scope of the enumerated powers. The distinction
between this power, and the power of appropriation
is, that in the latter, congress may appropriate to any purpose,
which is for the common defence or general welfare;
but in the former, they can engage in such undertakings
only, as are means, or incidents to its enumerated powers.
Congress may, therefore, authorize the making of a canal,
as incident to the power to regulate commerce, where such
canal may facilitate the intercourse between state and state.
They may authorize light-houses, piers, buoys, and beacons
to be built for the purposes of navigation. They may
authorize the purchase and building of custom-houses,
and revenue cutters, and public ware-houses, as incidents
to the power to lay and collect taxes. They may purchase
places for public uses; and erect forts, arsenals, dock-yards,
navy-yards, and magazines, as incidents to the
power to make war.

§ 1270. For the same reason congress may authorize the
laying out and making of a military road, and acquire a
right over the soil for such purposes; and as incident
thereto they have a power to keep the road in repair, and
prevent all obstructions thereto. But in these, and the like
cases, the general jurisdiction of the state over the soil,
subject only to the rights of the United States, is not excluded.
As, for example, in case of a military road; although
a state cannot prevent repairs on the part of the
United States, or authorize any obstructions of the road,
its general jurisdiction remains untouched. It may punish
all crimes committed on the road; and it retains in other
respects its territorial sovereignty over it. The right of soil
may still remain in the state, or in individuals, and the
right to the easement only in the national government.
There is a great distinction between the exercise of a
power, excluding altogether state jurisdiction, and the exercise
of a power, which leaves the state jurisdiction generally
in force, and yet includes, on the part of the national
government, a power to preserve, what it has created.

§ 1271. In all these, and other cases, in which the power
of congress is asserted, it is so upon the general ground of
its being an incidental power; and the course of reasoning,
by which it is supported, is precisely the same, as that
adopted in relation to other cases already considered. It is,
for instance, admitted, that congress cannot authorize the
making of a canal, except for some purpose of commerce
among the states, or for some other purpose belonging to
the Union; and it cannot make a military road, unless it be
necessary and proper for purposes of war. To go over the
reasoning at large would, therefore, be little more, than a
repetition of what has been already fully expounded. The
Journal of the Convention is not supposed to furnish any
additional lights on the subject, beyond what have been
already stated.

§ 1272. The resistance to this extended reach of the national
powers turns also upon the same general reasoning,
by which a strict construction of the constitution has been
constantly maintained. It is said, that such a power is not
among those enumerated in the constitution; nor is it implied,
as a means of executing any of them. The power to
regulate commerce cannot include a power to construct
roads and canals, and improve the navigation of watercourses
in order to facilitate, promote, and secure such
commerce, without a latitude of construction departing
from the ordinary import of the terms, and incompatible
with the nature of the constitution. The liberal interpretation
has been very uniformly asserted by congress; the
strict interpretation has not uniformly, but has upon several
important occasions been insisted upon by the executive.
In the present state of the controversy, the duty of
forbearance seems inculcated upon the commentator; and
the reader must decide for himself upon his own views of
the subject.

§ 1273. Another question has been made, how far congress
could make a law giving to the United States a preference
and priority of payment of their debts, in cases of
the death, or insolvency, or bankruptcy of their debtors,
out of their estates. It has been settled, upon deliberate
argument, that congress possess such a constitutional
power. It is a necessary and proper power to carry into
effect the other powers of the government. The government
is to pay the debts of the Union; and must be authorized
to use the means, which appear to itself most eligible
to effect that object. It may purchase, and remit bills for
this object; and it may take all those precautions, and make
all those regulations, which will render the transmission
safe. It may, in like manner, pass all laws to render effectual
the collection of its debts. It is no objection to this
right of priority, that it will interfere with the rights of the
state sovereignties respecting the dignity of debts, and will
defeat the measures, which they have a right to adopt to
secure themselves against delinquencies on the part of
their own revenue or other officers. This objection, if of
any avail, is an objection to the powers given by the constitution.
The mischief suggested, so far as it can really
happen, is the necessary consequence of the supremacy of
the laws of the United States on all subjects, to which the
legislative power of congress extends.

§ 1274. It is under the same implied authority, that the
United States have any right even to sue in their own
courts; for an express power is no where given in the constitution,
though it is clearly implied in that part respecting
the judicial power. And congress may not only authorize
suits to be brought in the name of the United States, but
in the name of any artificial person, (such as the Postmaster-General,)
or natural person for their benefit. Indeed,
all the usual incidents appertaining to a personal sovereign,
in relation to contracts, and suing, and enforcing rights, so
far as they are within the scope of the powers of the government,
belong to the United States, as they do to other
sovereigns. The right of making contracts and instituting
suits is an incident to the general right of sovereignty; and
the United States, being a body politic, may, within the
sphere of the constitutional powers confided to it, and
through the instrumentality of the proper department, to
which those powers are confided, enter into contracts not
prohibited by law, and appropriate to the just exercise of
those powers; and enforce the observance of them by suits
and judicial process.

§ 1275. There are almost innumerable cases, in which
the auxiliary and implied powers belonging to congress
have been put into operation. But the object of these Commentaries
is, rather to take notice of those, which have
been the subject of animadversion, than of those, which
have hitherto escaped reproof, or have been silently approved.

§ 1276. Upon the ground of a strict interpretation, some
extraordinary objections have been taken in the course of
the practical operations of the government. The very first
act, passed under the government, which regulated the
time, form, and manner, of administering the oaths prescribed
by the constitution, was denied to be constitutional.
But the objection has long since been abandoned. It has
been doubted, whether it is constitutional to permit the
secretaries to draft bills on subjects connected with their
departments, to be presented to the house of representatives
for their consideration. It has been doubted, whether
an act authorizing the president to lay, regulate, and revoke,
embargoes was constitutional. It has been doubted,
whether congress have authority to establish a military
academy. But these objections have been silently, or practically
abandoned.

§ 1277. But the most remarkable powers, which have
been exercised by the government, as auxiliary and implied
powers, and which, if any, go to the utmost verge of
liberal construction, are the laying of an unlimited embargo
in 1807, and the purchase of Louisiana in 1803, and
its subsequent admission into the Union, as a state. These
measures were brought forward, and supported, and carried,
by the known and avowed friends of a strict construction
of the constitution; and they were justified at the time,
and can be now justified, only upon the doctrines of those,
who support a liberal construction of the constitution. The
subject has been already hinted at; but it deserves a more
deliberate review.

§ 1278. In regard to the acquisition of Louisiana:--The
treaty of 1803 contains a cession of the whole of that vast
territory by France to the United States, for a sum exceeding
eleven millions of dollars. There is a stipulation in the
treaty on the part of the United States, that the inhabitants
of the ceded territory shall be incorporated into the
Union, and admitted, as soon as possible, according to the
principles of the federal constitution, to the enjoyment of
all the rights, advantages, and immunities of citizens of the
United States.

§ 1279. It is obvious, that the treaty embraced several
very important questions, each of them upon the grounds
of a strict construction full of difficulty and delicacy. In the
first place, had the United States a constitutional authority
to accept the cession and pay for it? In the next place, if
they had, was the stipulation for the admission of the inhabitants
into the Union, as a state, constitutional, or
within the power of congress to give it effect?

§ 1280. There is no pretence, that the purchase, or cession
of any foreign territory is within any of the powers
expressly enumerated in the constitution. It is no where in
that instrument said, that congress, or any other department
of the national government, shall have a right to
purchase, or accept of any cession of foreign territory.
The power itself (it has been said) could scarcely have been
in the contemplation of the framers of it. It is, in its own
nature, as dangerous to liberty, as susceptible of abuse in
its actual application, and as likely as any, which could be
imagined, to lead to a dissolution of the Union. If congress
have the power, it may unite any foreign territory whatsoever
to our own, however distant, however populous,
and however powerful. Under the form of a cession, we
may become united to a more powerful neighbour or rival;
and be involved in European, or other foreign interests,
and contests, to an interminable extent. And if there
may be a stipulation for the admission of foreign states
into the Union, the whole balance of the constitution may
be destroyed, and the old states sunk into utter insignificance.
It is incredible, that it should have been contemplated,
that any such overwhelming authority should be
confided to the national government with the consent of
the people of the old states. If it exists at all, it is unforeseen,
and the result of a sovereignty, intended to be limited,
and yet not sufficiently guarded. The very case of the
cession of Louisiana is a striking illustration of the doctrine.
It admits, by consequence, into the Union an immense
territory, equal to, if not greater, than that of all
the United States under the peace of 1783. In the natural
progress of events, it must, within a short period, change
the whole balance of power in the Union, and transfer to
the West all the important attributes of the sovereignty of
the whole. If, as is well known, one of the strong objections
urged against the constitution was, that the original territory
of the United States was too large for a national government;
it is inconceivable, that it could have been within
the intention of the people, that any additions of foreign
territory should be made, which should thus double every
danger from this source. The treaty-making power must
be construed, as confined to objects within the scope of the
constitution. And, although congress have authority to admit
new states into the firm, yet it is demonstrable, that
this clause had sole reference to the territory then belonging
to the United States; and was designed for the admission
of the states, which, under the ordinance of 1787,
were contemplated to be formed within its old boundaries.
In regard to the appropriation of money for the purposes
of the cession the case is still stronger. If no appropriation
of money can be made, except for cases within the enumerated
powers, (and this clearly is not one,) how can the
enormous sum of eleven millions be justified for this object?
If it be said, that it will be "for the common defence,
and general welfare" to purchase the territory, how is this
reconcileable with the strict construction of the constitution?
If congress can appropriate money for one object,
because it is deemed for the common defence and general
welfare, why may they not appropriate it for all objects of
the same sort? If the territory can be purchased, it must
be governed; and a territorial government must be created.
But where can congress find authority in the constitution
to erect a territorial government, since it does not
possess the power to erect corporations?

§ 1281. Such were the objections, which have been, and
in fact may be, urged against the cession, and the appropriations
made to carry the treaty into effect. The friends
of the measure were driven to the adoption of the doctrine,
that the right to acquire territory was incident to national
sovereignty; that it was a resulting power, growing
necessarily out of the aggregate powers confided by the
federal constitution; that the appropriation might justly be
vindicated upon this ground, and also upon the ground,
that it was for the common defence and general welfare.
In short, there is no possibility of defending the constitutionality
of this measure, but upon the principles of the
liberal construction, which has been, upon other occasions,
so earnestly resisted.

§ 1282. As an incidental power, the constitutional right
of the United States to acquire territory would seem so
naturally to flow from the sovereignty confided to it, as not
to admit of very serious question. The constitution confers
on the government of the Union the power of making
war, and of making treaties; and it seems consequently to
possess the power of acquiring territory either by conquest
or treaty. If the cession be by treaty, the terms of that
treaty must be obligatory; for it is the law of the land. And
if it stipulates for the enjoyment by the inhabitants of the
rights, privileges, and immunities of citizens of the United
States, and for the admission of the territory into the
Union, as a state, these stipulations must be equally obligatory.
They are within the scope of the constitutional authority
of the government, which has the right to acquire
territory, to make treaties, and to admit new states into the
Union.

§ 1283. The more recent acquisition of Florida, which
has been universally approved, or acquiesced in by all the
states, can be maintained only on the same principles; and
furnishes a striking illustration of the truth, that constitutions
of government require a liberal construction to effect
their objects, and that a narrow interpretation of their
powers, however it may suit the views of speculative philosophers,
or the accidental interests of political parties, is
incompatible with the permanent interests of the state, and
subversive of the great ends of all government, the safety
and independence of the people.

§ 1284. The other instance of an extraordinary application
of the implied powers of the government, above alluded
to, is the embargo laid in the year 1807, by the special
recommendation of President Jefferson. It was
avowedly recommended, as a measure of safety for our
vessels, our seamen, and our merchandise from the then
threatening dangers from the belligerents of Europe; and
it was explicitly stated "to be a measure of precaution
called for by the occasion;" and "neither hostile in its character,
nor as justifying, or inciting, or leading to hostility
with any nation whatever." It was in no sense, then, a war
measure. If it could be classed at all, as flowing from, or
as an incident to, any of the enumerated powers, it was
that of regulating commerce. In its terms, the act provided,
that an embargo be, and hereby is, laid on all ships
and vessels in the ports, or within the limits or jurisdiction,
of the United States, &c. bound to any foreign port or
place. It was in its terms unlimited in duration; and could
be removed only by a subsequent act of congress, having
the assent of all the constitutional branches of the legislature.

§ 1285. No one can reasonably doubt, that the laying of
an embargo, suspending commerce for a limited period, is
within the scope of the constitution. But the question of
difficulty was, whether congress, under the power to regulate
commerce with foreign nations, could constitutionally
suspend and interdict it wholly for an unlimited period,
that is, by a permanent act, having no limitation as to
duration, either of the act, or of the embargo. It was most
seriously controverted, and its constitutionality denied in
the Eastern states of the Union, during its existence. An
appeal was made to the judiciary upon the question; and
it having been settled to be constitutional by that department
of the government, the decision was acquiesced in,
though the measure bore with almost unexampled severity,
upon the Eastern states; and its ruinous effects can still
be traced along their extensive seaboard. The argument
was, that the power to regulate did not include the power
to annihilate commerce, by interdicting it permanently
and entirely with foreign nations. The decision was, that
the power of congress was sovereign, relative to commercial
intercourse, qualified by the limitations and restrictions
contained in the constitution itself. Non-intercourse
and Embargo laws are within the range of legislative discretion;
and if congress have the power, for purposes of
safety, of preparation, or counteraction, to suspend commercial
intercourse with foreign nations, they are not limited,
as to the duration, any more, than as to the manner
and extent of the measure.

§ 1286. That this measure went to the utmost verge of
constitutional power, and especially of implied power, has
never been denied. That it could not be justified by any,
but the most liberal construction of the constitution, is
equally undeniable. It was the favourite measure of those,
who were generally the advocates of the strictest construction.
It was sustained by the people from a belief, that it
was promotive of the interests, and important to the safety
of the Union.

§ 1287. At the present day, few statesmen are to be
found, who seriously contest the constitutionality of the
acts respecting either the embargo, or the purchase and
admission of Louisiana into the Union. The general voice
of the nation has sustained, and supported them. Why,
then, should not that general voice be equally respected in
relation to other measures of vast public importance, and
by many deemed of still more vital interest to the country,
such as the tariff laws, and the national bank charter? Can
any measures furnish a more instructive lesson, or a more
salutary admonition, in the whole history of parties, at
once to moderate our zeal, and awaken our vigilance, than
those, which stand upon principles repudiated at one time
upon constitutional scruples, and solemnly adopted at another
time, to subserve a present good, or foster the particular
policy of an administration? While the principles of
the constitution should be preserved with a most guarded
caution, and a most sacred regard to the rights of the
states; it is at once the dictate of wisdom, and enlightened
patriotism to avoid that narrowness of interpretation,
which would dry up all its vital powers, or compel the government
(as was done under the confederation,) to break
down all constitutional barriers, and trust for its vindication
to the people, upon the dangerous political maxim,
that the safety of the people is the supreme law, (salus populi
suprema lex;) a maxim, which might be used to justify
the appointment of a dictator, or any other usurpation.

§ 1288. There remain one or two other measures of a
political nature, whose constitutionality has been denied;
but which, being of a transient character, have left no permanent
traces in the constitutional jurisprudence of the
country. Reference is here made to the Alien and Sedition
laws, passed in 1798, both of which were limited to a short
duration, and expired by their own limitation. One (the
Alien act) authorized the president to order out of the
country such aliens, as he should deem dangerous to the
peace and safety of the United States; or should have reasonable
grounds to suspect to be concerned in any treasonable,
or secret machinations against the government of
the United States, under severe penalties for disobedience.
The other declared it a public crime, punishable with fine
and imprisonment, for any persons unlawfully to combine,
and conspire together, with intent to oppose any measure
or measures of the United States, &c.; or with such intent,
to counsel, advise, or attempt to procure any insurrection,
unlawful assembly, or combination; or to write, print, utter,
or publish, or cause, or procure to be written, &c., or
willingly to assist in writing, &c., any false, scandalous, and
malicious writing or writings against the government of
the United States, or either house of congress, or the president,
with intent to defame them, or to bring them into
contempt, or disrepute, or to excite against them the
hatred of the people, or to stir up sedition; or to excite
any unlawful combination for opposing, or resisting any
law, or any lawful act of the president, or to resist, oppose,
or defeat any such law or act; or to aid, encourage, or abet
any hostile designs of any foreign nations against the
United States. It provided, however, that the truth of the
writing or libel might be given in evidence; and that the
jury, who tried the cause, should have a right to determine
the law and the fact, under the direction of the court, as
in other cases.

§ 1289. The constitutionality of both the acts was assailed
with great earnestness and ability at the time; and
was defended with equal masculine vigour. The ground of
the advocates, in favour of these laws, was, that they resulted
from the right and duty in the government of self-preservation,
and the like duty and protection of its functionaries
in the proper discharge of their official duties.
They were impugned, as not conformable to the letter or
spirit of the constitution; and as inconsistent in their principles
with the rights of citizens, and the liberty of the
press. The Alien act was denounced, as exercising a power
not delegated by the constitution; as uniting legislative and
judicial functions, with that of the executive; and by this
Union as subverting the general principles of free government,
and the particular organization and positive provisions
of the constitution. It was added, that the Sedition
act was open to the same objection, and was expressly forbidden
by one of the amendments of the constitution, on
which there will be occasion hereafter to comment. At
present it does not seem necessary to present more than
this general outline, as the measures are not likely to be
renewed; and as the doctrines, on which they are maintained,
and denounced, are not materially different from
those, which have been already considered.